Lowering the Bar

This proposal from IEEE for a “patent lite” regime to augment the current patent system strikes me as a very bad idea. It would lower the bar for patents by eliminating the obviousness requirements, thereby expediting the review process and allowing “limited patents” to be granted more quickly. And “limited patents” would have a term of only four years.

This proposal seems like it would take the worst features of our current patent system and make them even worse:

In fact, no examination–beyond a check to see that the minimum filing requirements are met–would be performed before issuing a registration number, which the patent owner would be required to use alongside the invention to gain protection. Because there would be no official determination of novelty, there would be no presumption of validity for the limited patent. Anyone who pays an examination fee and submits prior art showing the protected item is not novel could challenge the limited patent.

Should the patent owner try to sue an alleged infringer, an examination for novelty would be the initial step in any litigation. At the time of the filing of a lawsuit, the proceeding would be stayed pending the patent office’s examination. That exam would take less time than a regular patent examination, because obviousness would not be considered. In addition, the alleged violator of the protection would be able to provide prior art for the examiner to consider, evidence that would substantially reduce the cost and duration of litigation, particularly when there is evidence that protection should not be granted because the technology isn’t novel.

Because the goal is to prevent knockoffs, it would protect against these who were aware of technology in the market. Showing that the technology had been independently created before the patentee’s first commercial use would be an absolute defense. But it would be a personal defense; the patent would still be valid against others who cannot show substantial development of their products prior to the patented product’s introduction.

I think the idea of trying to “prevent knockoffs” really gets to the heart of what’s wrong with software patents in the first place. Google is a knockoff of Altavista. Windows is a knockoff of the Macintosh. Linux is a knockoff of Unix. Internet Explorer is a knockoff of Netscape. Excel is a knockoff of VisiCalc. Ordinarily, we call such knockoffs “competitors.” Yet in the bizarro world of software patents, when a company becomes “aware of technology in the market” and decides to build their own technology to do the same job, (even if it’s developed independently) that’s something the law ought to punish.

Patents are supposed to protect specific implementations of an idea, not the idea itself. “Knockoffs” are supposed to be permitted–even encouraged–as long as the knockoff isn’t implemented in the specific way described in the patent. But because of the nature of software, there isn’t any clear difference between an idea and its implementation. (And implementations are already protected by copyright, so it’s not clear why addition protection is needed at all). As a result, you wind up with broad concepts, such as one-click shopping or wireless email being granted patent protection. This proposal will only make that problem worse.